Currently, the federal government does not provide a remedy (or even a right to review cases) for violations of Article 36. However, at the state level, the story is different. Almost three-quarters of the states have dealt with VCCR violations in their case law, which demonstrates that the issue is broader than one isolated example in Texas.208 While state courts have varied in how to process the VCCR, it does not appear that any state has approved suppression as a remedy. Some states have rejected the preliminary notion that the VCCR creates a judicially enforceable individual right209 or that it is enforceable at all.210 This rejection prevents
203. Id. § 4(a)(1).
204. Id.
205. Id. § 4(a)(2).
206. Id. § 4(a)(3).
207. See S. 1194 (112th): Consular Notification Compliance Act of 2011, GOVTRACK.US, http://www.govtrack.us/congress/bills/112/s1194 (last visited Apr. 6, 2014).
208. These thirty-seven states are: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, Missouri, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Virginia, Washington, and Wisconsin. See infra notes 210–13, 218.
209. Seven states—Alabama, Kentucky, New Jersey, New Mexico, Oregon, Tennessee, and Wisconsin—have rejected an enforceable individual right stemming from the VCCR. See, e.g., Albarran v. State, 96 So. 3d 131, 151 (Ala. Crim. App. 2011); Gomez v. Commonwealth, 152 S.W.3d 238, 242 (Ky. Ct. App. 2004); State v. King, 858 A.2d 4, 13 (N.J. Super. Ct. App. Div.
2004); State v. Martinez-Rodriguez, 33 P.3d 267, 274 (N.M. 2001); State v. Sanchez-Llamas, 108 P.3d 573, 578 (Or. 2005); Young Bok Song v. State, M2010-02054-CCA-R3-CO, 2011 WL 2713738, at *1 (Tenn. Crim. App. July 13, 2011); State v. Navarro, 659 N.W.2d 487, 494 (Wis. Ct.
App. 2003). From these cases it is clear that four of these states—Alabama, Kentucky, New Jersey, and Tennessee—have additionally rejected suppression as a remedy for any violations even if the rights are individually enforceable.
210. Arkansas incorrectly interpreted Medellín to hold that the VCCR is not domestically enforceable and thus courts do not need to apply it. Gikonyo v. State, 283 S.W.3d 631, 636 (Ark.
Ct. App. 2008).
courts from taking the next step to remedy any violations in a criminal context. Of the states that allow for an individual right (or evade the issue like the Supreme Court), their courts universally hold that suppression is not an appropriate remedy.211 These courts offer no other remedy.
A few state courts have dealt with the issue superficially and focused on the procedural defects of claims in order to avoid the issue of consular notification.212 These decisions are consistent with the long history of federal consular notification litigation that uniformly holds that rights and obligations under the VCCR are subject to state procedural default rules.213
These results are unsurprising. After the U.S. Supreme Court’s rejection of the exclusionary rule in Sanchez-Llamas, state courts followed suit (although, some courts had already rejected suppression as an appropriate remedy long before that decision). As a Colorado court of appeals noted,
“The exclusionary rule deters only constitutional violations, not statutory or treaty violations.”214 But what about casting an Article 36 violation in a larger context, making it part of a voluntariness claim tied to Miranda or an ineffective assistance of counsel claim? These arguments, too, have failed to bring defendants any relief.215 Some states have gone even further, as exemplified by a New York court’s holding that “[an Article 36]
violation is not a circumstance affecting the voluntariness of a statement, and [] there is no reason for evidence of such a violation to be considered
211. Twenty-one states have found that suppression is not a valid remedy without regard to the existence of a right. These states include: Alaska, Arizona, California, Colorado, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Louisiana, Missouri, Nevada, New York, North Carolina, Ohio, South Carolina, Texas, Utah, Virginia, and Washington. See, e.g., Zuboff v. State, No. A-8692, 2006 WL 3114386, at *21 (Alaska Ct. App. 2006); State v. Prasertphong, 75 P.3d 675, 688 (Ariz.
2003) (en banc); People v. Enraca, 269 P.3d 543, 560 (Cal. 2012); People v. Preciado-Flores, 66 P.3d 155, 161–62 (Colo. App. 2002); Conde v. State, 860 So. 2d 930, 953 (Fla. 2003); Anaya- Plasencia v. State, 642 S.E.2d 401, 403 (Ga. Ct. App. 2007); People v. Vasquez, 824 N.E.2d 1071, 1076 (Ill. App. Ct. 2005); Zavala v. State, 739 N.E.3d 135, 140 (Ind. Ct. App. 2000); State v.
Buenaventura, 660 N.W.2d 38, 46 (Iowa 2003); State v. Rosas, 17 P.3d 379, 386 (Kan. Ct. App.
2000); State v. Garcia, 26 So. 3d 159, 166 (La. Ct. App. 2009); Commonwealth v. Diemer, 785 N.E.2d 1237, 1244–45 (Mass. App. Ct. 2003); Cardona-Rivera v. State, 33 S.W.3d 625, 627 (Mo.
Ct. App. 2000); Garcia v. State, 17 P.3d 994, 997 (Nev. 2001); People v. Ortiz, 17 A.D.3d 190, 191 (N.Y. App. Div. 2005); State v. Herrera, 672 S.E.2d 71, 79–80 (N.C. Ct. App. 2009); State v. Tuck, 766 N.E.2d 1065, 1067 (Ohio Ct. App. 2001); State v. Banda, 639 S.E.2d 36, 42, 43 (S.C. 2006);
Rocha v. State, 16 S.W.3d 1, 19 (Tex. Crim. App. 2000); State v. Kozlov, 276 P.3d 1207, 1227 (Utah Ct. App. 2012); Bell v. Commonwealth, 563 S.E.2d 695, 707 (Va. 2002); State v. Jamison, 20 P.3d 1010, 1016–17 (Wash. Ct. App. 2001).
212. See, e.g., State v. Arroyo, 935 A.2d 975, 979–80 n.3 (Conn. 2007); Rummer v. State, 722 N.W.2d 528, 536 (N.D. 2006); Commonwealth v. Cam Ly, 980 A.2d 61, 98 (Pa. 2009).
213. See supra Part I.
214. Preciado-Flores, 66 P.3d at 161.
215. See, e.g., Ledezma v. Iowa, 626 N.W.2d 134, 134 (Iowa 2001) (failing as part of an ineffective assistance of counsel claim); Garcia, 26 So. 3d at 159 (failing as part of a voluntariness claim).
by a jury in that regard.”216 Cases like these virtually eliminate the possibility of a defendant’s successful use of VCCR violations as a basis to make a constitutional claim.
In those states that permit a defendant to raise a VCCR violation as a defense, before the defendant is eligible for relief, the defendant must show the lack of consular notification resulted in prejudice.217 In states that require a showing of prejudice, the test for prejudice sometimes mirrors the standard necessary to overcome procedural default, except the burden is on the defendant. For example, Oklahoma devised a three-prong test for prejudice:
(1) whether the defendant did not know he had a right to contact his consulate for assistance; (2) whether he would have availed himself of the right had he known of it; and (3) whether it was likely that the consulate would have assisted the defendant. . . . The defendant must present evidence showing what efforts his consulate would have made to assist in his criminal case.218
While a defendant in Oklahoma is not required to show that the consular assistance would have made a difference in the outcome of the trial, he must show that assistance would have been provided.219 Thus, the Oregon Supreme Court, in a case eventually granted certiorari by the U.S.
Supreme Court, stated: “the only remedies for failures of consular notification under the [VCCR] are diplomatic, political, or exist between [signatory] states under international law.”220
While it is true that remedies may not exist in the VCCR, states are still free to codify the VCCR and provide a remedy. As a Massachusetts court noted, “In order to enable the full effect to be given to art. 36 . . . the notifications it requires must be incorporated into the protocols of the State and local law enforcement agencies.”221 Five states—California, Florida, Georgia, Illinois, and Oregon—either passed or proposed legislation that references consular notification but does not include a remedy with this language.
216. Ortiz, 17 A.D.3d at 191.
217. See, e.g., State v. Rosas, 17 P.3d 379, 385, 386 (Kan. Ct. App. 2000); State v. Byron, 683 N.W.2d 317, 323 (Minn. Ct. App. 2004); Torres v. State, 120 P.3d 1184, 1187, 1188 (Okla. Crim.
App. 2005); State v. Lopez, 574 S.E.2d 210, 214 (S.C. Ct. App. 2002).
218. Torres, 120 P.3d at 1186; see also State v. Lopez, 633 N.W.2d 774, 783 (Iowa 2001) (explaining that several federal courts apply this test to determine whether prejudice results from Article 36 violations).
219. Torres, 120 P.3d at 1186, 1187. Although actual prejudice did exist in this case as to the capital sentence, there was no need for a remedy as that sentence was suspended.
220. State v. Sanchez-Llamas, 108 P.3d 573, 578 (Or. 2005) (alteration in original) (quoting United States v. Li, 206 F.3d 56, 63–64 (1st Cir. 2000)).
221. Commonwealth v. Gautreaux, 941 N.E.2d 616, 622 (Mass. 2011).
Oregon’s legislative efforts focus on the education of law enforcement, but do not provide a remedy for VCCR violations. Oregon passed a statute that requires authorities to train law enforcement to “[u]nderstand the requirements of the [VCCR] and identify situations in which the officers are required to inform a person of the person’s rights under the convention.”222 Legislation from other states also provide no remedy and require no compliance. Florida passed the strongest statutory language in 2001, which stated that failure to provide consular notification would not be a defense in any criminal proceeding.223 California, too, codified the VCCR into California Penal Code § 834c and § 5028.224 However, the statutory language provides no remedy for the violation of either. Georgia gives some effect to the treaty with its passage of Georgia Code Annotated
§ 42-4-14, which states, “When any person is confined, for any period, in [a] jail . . . in compliance with Article 36 of the [VCCR], a reasonable effort shall be made to determine the nationality of the person so confined.”225 Again, Georgia provides no remedy for failure to make such a reasonable effort. The Illinois legislature proposed a bill that goes a bit further and requires that notice of this right (to be codified into the statute) be given in open court.226 If such notice is not given, and if the defendant can show prejudice as a result of the violation, then the court must allow either for a continuance or a remand and new trial.227
Overall, although states do not frequently provide remedies for violations, there may be a path forward in some states for defendants who raise their claims at the proper times or who are able to show prejudice from the denial of consultation. However, the burden is too high for most defendants and only a small incentive (or direction) exists for law enforcement to enforce notification. Therefore, the notification obligation remains an international promise between nation-states left to political and foreign policy authorities.
CONCLUSIONS
Three main conclusions are drawn from the consular rights litigation in the United States. The first is the strong pronouncement that procedural default rules that states invoke are paramount and the VCCR does not override these laws. The U.S. Supreme Court reinforced this conclusion in
222. OR.REV.STAT. § 181.642(b)(2) (West, Westlaw through ch. 80 of 2014 Reg. Sess.).
223. FLA.STAT.ANN. § 901.26 (West, Westlaw through chapters in effect from the 2014 2d Reg. Sess. of the 23rd Legis. through Mar. 31, 2014).
224. CAL.PENAL CODE § 834c(d) (West, Westlaw through ch. 10 of 2014 Reg. Sess.); id.
§ 5028(b).
225. GA.CODE ANN. § 42-4-14 (Lexis 2012).
226. S.B. 1906, 97th Gen. Assemb. (Ill. 2011), available at http://ilga.gov/legislation/97/SB/
PDF/09700SB1906lv.pdf.
227. Id.
Breard: the VCCR intended nations to follow the treaty obligations “in compliance with” national laws, which may include procedural default rules. The U.S. Supreme Court reified this idea in Medellín, another case where the defendant ran afoul of procedural default rules and the Court firmly held them in place. The second conclusion is that there are binding legal limits on the invocation of the right the VCCR creates (if there is such a right). The procedural default rules provide some limits, but the refusal to apply the exclusionary rule to violations of the VCCR and the refusal to implement the decisions of the ICJ make these strictures all the more clear. At best, pronouncements of international legal bodies deserve
“respectful consideration” but not implementation or enforcement.
Third, the U.S. Supreme Court missed an opportunity to deal cleanly and correctly with the issue of consular notification. This speaks more to what the Court failed to do than what it did. Without treaty language to support the existence of an enforceable individual right (or any other mechanism), there is no impetus for domestic implementation. Therefore, states may make their own determinations as to consular notification when the federal government does not guide the discussion via international obligations. Consular notification has its place as an international consideration and the VCCR is something law enforcement and foreign nationals should be aware of—but its violation has no accompanying force.
Further, a decision from the Court on the absence of the right would stem the tide of consular notification litigation and avoid any holding about treaty interpretation or the binding nature of ICJ judgments.
In a concurring opinion in the First Circuit, two judges questioned the use of the word “right” regarding the VCCR.228 They explained that Article 36 seems to use the word merely as a way to “implement . . . the treaty obligations as between [nation-states]. Any other phrasing of the promise as to what law enforcement officers will say to detainees would be artificial and awkward.”229 Phrasing the duties that accompany consular notification as something other than a “right” may be linguistically awkward, but far more accurate. After a long history of litigation over the meaning of Article 36, this right to consular notification is nothing more than an international obligation between nations that nations may or may not uphold. The Treaty itself does not make it a right, nor does any governmental body within the United States. Rather than avoid this question, the U.S. Supreme Court should have answered it in the negative:
the consular notification provision does not provide an enforceable individual right.
228. United States v. Li, 206 F.3d 56, 66 (1st Cir. 2000) (emphasis omitted).
229. Id.